By Nichole Atallah, Sarah Nash, and Matthew Stokes on November 4, 2021
On September 30, 2021, the Federal Acquisition Regulatory Council issued a memorandum requiring that most federal contractors and subcontractors include a clause in future contracts and subcontracts that require employees to be vaccinated. This directive follows President Biden’s September 9th announcement, as well as the Safer Federal Workforce Task Force Guidance (Guidance) issued on September 24th. The Task Force’s Guidance sets forth required workplace safety protocols for federal contractors and subcontractors with a covered contract, including details on the implementation of President Biden’s vaccine mandate. PilieroMazza’s Labor & Employment Group addresses five (5) critical developments from the Guidance below.
1. Which contracts are covered by the vaccine mandate?
The mandate applies to entities that enter into contracts (and contract-like instruments) above the Simplified Acquisition Threshold and that are subject to the Federal Acquisition Regulation (FAR). As of November 14, 2021, agencies will be required to incorporate a forthcoming FAR clause into new contracts, and as of October 15, 2021, the clause must have been incorporated into contracts where an option is exercised or an extension is made. The clause requires that contractors comply with Task Force Guidance as to mandatory vaccinations absent an approved accommodation. Contractors are obligated to flow down the obligations to subcontractors at any tier. Notably, the mere fact that a contract does not fall within these criteria or that it is awarded prior to November 14, 2021, does not guarantee that the mandate will not be applied to a contract. Indeed, the Guidance encourages agencies to incorporate the clause sooner. The General Services Administration, for example, has already begun issuing mass modifications that apply to both supplies and services. Contracts not subject to the FAR are not entirely exempt from vaccination requirements either. Per the Guidance, agencies responsible for such contracts, like concession contracts, must have developed appropriate guidance by October 8, 2021, to incorporate into their contracts.
2. Which contractor employees are covered by the mandate?
According to the Guidance, a covered contractor employee is “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace.” This includes any employee working on or in connection with a covered contract (regardless of whether they work remotely) and any employee working at a contractor workplace (regardless of their work on a particular contract). Absent a need for a legally required accommodation, these employees will be subject to the vaccine requirement.
3. When does the requirement begin?
Once the FAR clause is incorporated into a contract, a covered contractor’s employees generally must be vaccinated no later than January 4, 2022, or by the start of performance. There is a narrow exception where an agency has an “urgent, mission-critical need” for a covered contractor to have employees begin work on a contract. In that instance, the employees may be granted a 60-day extension to get fully vaccinated. Recent guidance assumes some additional flexibility may be considered by the contracting officer, but provides no guidance on the extent of that authority.
4. What is a covered contractor’s responsibility to ensure employee vaccination?
A covered contractor must review its covered employees’ documentation to prove vaccination status. Before the Guidance, many agencies merely required on-site contractor employees to attest that they were vaccinated. In addition to the ongoing on-site requirements, the Guidance places more onus on the covered contractors to verify their employees’ vaccination status. To comply with the Guidance, covered contractors must inspect proof of vaccination. Contractors may provide employees with reasonable accommodations for medical and religious needs in accordance with legal obligations.
5. Are there other noteworthy contractor obligations?
The Guidance also requires covered contractors to comply with masking and social distancing requirements. Contractors must comply with Centers for Disease Control and Prevention (CDC) guidance, including requiring that employees wear CDC-approved masks in certain indoor settings in areas with high or substantial community transmission. Contractors also must monitor the CDC COVID-19 Data Tracker County View website on a weekly basis for transmission information and designate a workplace safety coordinator.
The COVID-19 pandemic continues to evolve and the Task Force will likely update its Guidance periodically. PilieroMazza’s Labor & Employment Group is monitoring the situation and is available to provide assistance as companies navigate compliance and related pitfalls. Should your company need updated vaccination policies or simply have a question regarding the Guidance, please do not hesitate to reach out.
To learn more about the responsibilities of contractors according to this mandate, be on the lookout for Nichole Atallah’s appearance on the next episode of The New Normal in Government Contracting!
About the Authors
Nichole Atallah
Nichole Atallah is a Partner and the Practice Group Chair of Labor & Employment at the DC-based law firm PilieroMazza PLLC. She counsels employers and their compliance professionals in a broad range of labor and employment matters, including employment discrimination, wage and hour, family and medical leave, labor union negotiations and grievances, executive compensation, and reductions in force. Government contractors rely on Nichole’s substantial expertise with FAR Part 22 compliance, including the Service Contract Labor Standards (Service Contract Act), Construction Labor Standards (Davis-Bacon Act), and the Office of Federal Contract Compliance Programs requirements specific to government contractors. Nichole’s primary goal in representing employers is to help guide them through difficult situations, proactively address compliance, and avoid costly disputes. Nichole may be reached at natallah@pilieromazza.com.
Sarah Nash
Sarah Nash is a Partner in the Labor & Employment Group at the DC-based law firm PilieroMazza PLLC. She advises government contractors and commercial businesses on a wide variety of labor and employment issues, including the Fair Labor Standards Act, the National Labor Relations Act, Office of Federal Contract Compliance Programs regulations, and anti-discrimination law. Her practice also includes counseling employers on terminations, labor relations matters, employment agreements, wage and hour issues, and employment practices and policies. Sarah regularly advises clients on compliance specific to government contracting, including offering counsel on prevailing wage laws, such as the Service Contract Act, codes of ethics, and equal employment opportunity requirements. As Co-Chair of PilieroMazza’s False Claims Act and Audits & Investigations Team, she helps clients navigate the complexities of labor and employment-related investigations and whistleblower law. Sarah is also a member of the Firm’s Construction Industry Team, where she focuses on matters arising under the Davis-Bacon Act and prevailing wage requirements. Sarah may be reached at snash@pilieromazza.com.
Matthew Stokes
Matthew Stokes is an Associate in the Labor & Employment Group at the DC-based law firm PilieroMazza PLLC. Matt provides counsel to clients on matters related to the numerous and ever-changing labor and employment laws affecting employers and their employees. Specifically, he advises clients on collective bargaining-related matters, including representation cases and unit clarification. Matt also offers employers sound guidance on grievances, terminations, and contract disputes pursuant to collective bargaining agreements and regarding civil service matters. And he is experienced in drafting workplace policies and procedures, employee handbooks, and collective bargaining agreements. Most recently, Matt has advised employers on COVID-related rules in the workplace, including gathering limitations and mask compliance. Matthew may be reached at mstokes@pilieromazza.com.
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